Busboom v. Superior Court — 113 Cal. App. 3d 550

Majority

p. 550

[Civ. No. 24096.

Fourth Dist., Div. One.

Dec. 18, 1980.]

RICHARD BUSBOOM, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THOMAS E. KELLER, Real Party in Interest.

p. 552

Counsel

Glen R. Roberts and Andrew F. Lloyd for Petitioner.

No appearance for Respondent.

Higgs, Fletcher & Mack and Dennis P. Hickman for Real Party in Interest.

Opinion

The issue is whether Taylor v. Superior Court (1979) 24 Cal.3d 890 [ 157 Cal.Rptr. 693 , 598 P.2d 854 ], permitting recovery of punitive damages in an appropriate drunk driving case, shall apply retroactively to accidents occurring before August 1979. One appellate court has addressed the issue and declined to apply Taylor retroactively (Mau v. Superior Court (1980) 101 Cal.App.3d 875 [ 161 Cal.Rptr. 895 ]). Feeling bound by that decision, the superior court here granted partial summary judgment to defendant/real party Thomas Keller, eliminating from petitioner Busboom’s complaint the allegations and damages claim concerning punitives.

Petitioner Richard Busboom and his brother Dean were riding motorcycles when Dean was run down by Keller, driving a car in the wrong lane while drunk. Richard was seriously injured when he fell from his motorcycle while trying to avoid Keller’s car. He also witnessed Dean’s death. He brought this lawsuit along with the parents of both boys, who however have since settled. Although the original complaint, filed October 24, 1978 (based on an accident of Aug. 31, 1978) alleged in general terms Keller’s willful, reckless and wanton misconduct, those allegations were not sufficient to recover punitive damages. (See G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22 [ 122 Cal.Rptr. 218 ],

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requiring specific allegation of conscious disregard of safety.) However, after Taylor came down in August 1979, Richard sought leave to amend his complaint with appropriate allegations, and the superior court granted such leave on March 6, 1980, soon after Mau, supra, 101 Cal.App.3d 875 , was decided. The amendment is sufficient under both Taylor, supra, 24 Cal.3d 890 , and G. D. Searle, supra, in that Richard specifically alleges Keller voluntarily consumed alcohol, knowing he would then operate a motor vehicle, and drove while drunk, knowing the safety hazard he created and aware of the probable dangerous consequences of his conduct, which he willfully and deliberately failed to avoid. It is alleged that conduct shows conscious and deliberate disregard for the safety and interest of others.

The Mau decision gives two reasons for nonretroactivity: first, the rationale for punitives is deterrence, but retrospective deterrence makes no sense; and second, insurance companies have relied on the earlier law in figuring rates, and it would be unfair to penalize them by retroactive application of Taylor. Neither reason is particularly realistic. It is unlikely drunk drivers are deterred by the threat of punitives over and above already existing risks of drunk driving (e.g., loss of license, jail sentence, death or injury, cancellation of insurance, loss of status in some communities). As for insurance companies, they fix their rates with reference to many factors and their policies do not cover punitive damages.

Overruling decisions, especially in the tort field, are normally applied retroactively unless there has been great public reliance on the earlier rule, the new rule was nowhere foreshadowed, and it would be unfair to apply the rule retrospectively. (E.g., County of Los Angeles v. Faus (1957) 48 Cal.2d 672 , 680 [ 312 P.2d 680 ]; Forster Shipbldg. Co. v. County of L. A. (1960) 54 Cal.2d 450 , 459 [ 6 Cal.Rptr. 24 , 353 P.2d 736 ]; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176 , 193 [ 98 Cal.Rptr. 837 , 491 P.2d 421 ]; In re Marriage of Brown (1976) 15 Cal.3d 838 , 850 [ 126 Cal.Rptr. 633 , 544 P.2d 561 , 94 A.L.R.3d 164 ].)

The seminal decision precluding recovery of punitives in a drunk driving case is Gombos v. Ashe (1958) 158 Cal.App.2d 517 [ 322 P.2d 933 ], decided in 1958. At that time the standards for recovery of punitives were unclear, especially in the area of unintentional torts. As pointed out in Taylor, since that time, tort law has been evolving toward a prin

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ciple of recovery based on a finding of conscious disregard of safety. (Taylor v. Superior Court, supra, 24 Cal.3d 890 , 896.) That trend crystallized in G. D. Searle, supra, 49 Cal.App.3d 22 , decided in 1975, articulating the standard in the context of liability for defective drugs. Other cases associating liability with some form of reckless disregard for safety include, most importantly, Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452 , 464 [ 113 Cal.Rptr. 711 , 521 P.2d 1103 ] (punitives for insurance company’s breach of good faith covenant premised on showing of conscious disregard of plaintiff’s rights). (See also Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910 , 922 [ 148 Cal.Rptr. 389 , 582 P.2d 980 ].) Not only did this development foreshadow Taylor, but it also resulted in a majority of other courts in this country permitting punitives in a proper drunk driving case (Annot. (1975) 65 A.L.R.3d 656 , 661-666), and caused Dean Prosser in 1971 to express his view that malice might encompass conscious or deliberate disregard of others’ interests. (Prosser, Law of Torts (4th ed. 1971) § 2, pp. 9-10.) The decision in Taylor was hardly unexpected, and was in fact not foreseeable only by those who chose not to look.

Commercial reliance has not been a traditional basis for prospective application. (See, e.g., Wellenkamp v. Bank of America (1978) 21 Cal.3d 943 , 953-954 [ 148 Cal.Rptr. 379 , 582 P.2d 970 ] (due on sale clauses).) Tort cases, although inevitably affecting insurance rates to the same extent as here, are normally applied retroactively. (E.g., Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ]; Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1916 ], applied retroactively in Archibald v. Braverman (1969) 275 Cal.App.2d 253 [ 79 Cal.Rptr. 723 ]; Brown v. Merlo (1973) 8 Cal.3d 855 [ 106 Cal.Rptr. 388 , 506 P.2d 212 , 66 A.L.R.3d 505 ], applied retroactively in Cummings v. Morez (1974) 42 Cal.App.3d 66 [ 116 Cal.Rptr. 586 ]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 , 408 [ 115 Cal.Rptr. 765 , 525 P.2d 669 ].)

Retrospective application in cases like these is not an enormous burden. It affects only cases pending, or still within the statute of limitations for such claims, when Taylor was decided. That number is not large, since the short tort statute of limitations (one year) will limit the retrospective effect to accidents occurring after August 1978, as well as all cases already filed and pending when Taylor came down. This limited effect is not an unconscionable burden on insurance companies.

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A recent case, Dawes v. Superior Court (1980) 111 Cal.App.3d 82 [ 168 Cal.Rptr. 319 ], holds when conscious disregard of safety is alleged in a drunken driving case, punitive damages could be recovered even before Taylor, based on G. D. Searle, supra, 49 Cal.App.3d 22 , and Gombos v. Ashe, supra, 158 Cal.App.2d 517 . According to the court in Dawes, Taylor merely overruled that aspect of Gombos v. Ashe which held driving a vehicle while intoxicated is not itself a basis of a finding of conscious disregard of safety. Dawes permits recovery of punitives where facts showing specific conscious disregard of safety were alleged, not on the basis of any retroactive application of Taylor, but simply because such facts wer.e distinguishable from Gombos v. Ashe where only conclusionary pleading of malice was found. Although Dawes agreed no case before Taylor actually permitted recovery of punitives in a drunk driving case, it pointed out there has never been a formal rule precluding such recovery in all such cases, or otherwise distinguishing them from other tort actions. Rather, the question is simply the question of the sufficiency of the specific allegations to show malice, or, as expressed in G. D. Searle, supra, 49 Cal.App.3d 22 , conscious disregard of the safety of others.

Here, the original complaint stated Keller was intoxicated as the result of his “willful acts”; he drove his pickup truck southbound in the northbound lane of the highway in reckless disregard for the safety of northbound traffic, injuring plaintiffs. The later amendment further pleaded Keller drove when intoxicated with knowledge of the safety hazard he created and was aware of the probable dangerous consequences of his conduct, which he willfully and deliberately failed to avoid. It further states Keller’s conduct shows he acted with a conscious and deliberate disregard for the safety and interest of others such as to constitute malice.

It is not clear this pleading would have sufficed under the approach taken in Gombos v. Ashe, supra, 158 Cal.App.2d 517 , but it is certainly sufficient under G. D. Searle & Co., supra, 49 Cal.App.3d 22 , read in conjunction with Taylor. Although such a pleading might have been deemed insufficient before Taylor, we find it neither unfair nor unreasonable to permit it now, particularly because, as pointed out in Dawes, it is not clear Taylor has really changed the law as it applies to this pleading.

We conclude it was error to grant partial summary judgment striking petitioner’s claim for punitive damages. Let a writ of mandate issue, di

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reeling the superior court to vacate its grant of partial summary judgment on August 21, 1980, and to make a new and different order denying such summary judgment.

Cologne, J., and Work, J., concurred.

Cases cited

Taylor v. Superior Court 24 Cal.3d 890 Cal. 1979-08-21 at 896 p. 552, p. 553, p. 554
Mau v. Superior Court 101 Cal.App.3d 875 Cal. Ct. App. 1980-02-05 p. 552, p. 553
G. D. Searle & Co. v. Superior Court 49 Cal.App.3d 22 Cal. Ct. App. 1975-06-10 p. 552, p. 554, p. 555
County of Los Angeles v. Faus 48 Cal.2d 672 Cal. 1957-06-21 at 680 p. 553
Forster Shipbuilding Co. v. County of Los Angeles 54 Cal.2d 450 Cal. 1960-07-08 at 459 p. 553
Neel v. Magana, Olney, Levy, Cathcart & Gelfand 6 Cal.3d 176 Cal. 1971-12-02 at 193 p. 553
Brown v. Brown 15 Cal.3d 838 Cal. 1976-01-16 at 850 p. 553
Gombos v. Ashe 158 Cal.App.2d 517 Cal. Dist. Ct. App. 1958-03-19 p. 553, p. 555
Silberg v. California Life Insurance 11 Cal.3d 452 Cal. 1974-05-10 at 464 p. 554
Neal v. Farmers Insurance Exchange 21 Cal.3d 910 Cal. 1978-08-25 at 922 p. 554
Wellenkamp v. Bank of America 21 Cal.3d 943 Cal. 1978-08-25 at 953-954 p. 554
Nga Li v. Yellow Cab Co. 13 Cal.3d 804 Cal. 1975-03-31 p. 554
Dillon v. Legg 68 Cal.2d 728 Cal. 1968-06-21 p. 554
Archibald v. Braverman 275 Cal.App.2d 253 Cal. Ct. App. 1969-07-28 p. 554
Brown v. Merlo 8 Cal.3d 855 Cal. 1973-02-20 p. 554
Cummings v. Morez 42 Cal.App.3d 66 Cal. Ct. App. 1974-09-26 p. 554
Rodriguez v. Bethlehem Steel Corp. 12 Cal.3d 382 Cal. 1974-08-21 at 408 p. 554
Dawes v. Superior Court 111 Cal.App.3d 82 Cal. Ct. App. 1980-10-09 p. 555